In 1985, two dentists appeared in an advertising spread that ran in several magazines across Canada. The advertisement, entitled “New Faces of the Canadian Establishment,” was for Holiday Inns and it focused on the success of the dentists who had already travelled over 300 000 kilometres setting up new dental centres across Canada and the United States. The advertisement stated that when the dentists travel, they stay at Holiday Inn.

A few months later the dentists received notice from the Royal College of Dental Surgeons of Ontario that they were guilty of professional misconduct for promoting the Holiday Inn in the advertisement. The Royal College of Dental Surgeons of Ontario is the body responsible for regulating the practice of dentistry in Ontario. According to Regulation 447 pursuant to the Health Disciplines Act s. 37(39), the definition of professional misconduct includes “…publishing, displaying, distributing, or using…any advertisement related to the practice of dentistry…”

The dentists took their case to court, claiming that this section of the regulation violated the guarantee of freedom of expression in s. 2(b) of the Charter. The divisional court dismissed the case. The dentists appealed the decision to the Ontario Court of Appeal.

The Court of Appeal consider two issues: Does the guarantee of freedom of expression in the Charter include commercial speech (advertisements)? Second, if commercial speech is protected by the Charter, are the restrictions imposed by the Royal College of Dental Surgeons reasonable under s. 1?

Regarding the first question, the Court of Appeal found that, while freedom of speech is not absolute, commercial speech could be included in the definition of expression under s. 2(b) of the Charter. As for the second question, the Court recognized that regulations by the Royal College are designed to protect the public from misleading advertising by dentists, and such protection is sufficiently important to override a constitutionally protected right. However, s. 37(39) of the Regulation is too broad and prohibits legitimate forms of expression that consumers have a right to know. For this reason, the provision infringes s. 2(b) of the Charter. The appeal was allowed. The Royal College of Dental Surgeons appealed this decision to the Supreme Court of Canada, where it was dismissed.